{ "id": 3593276, "name": "LYLE NELSON, Trustee under the Last Will and Testament of A. V. Nelson, Deceased, Plaintiff-Appellant, v. ROBERT E. GUNDLOCK et al., Defendants-Appellees", "name_abbreviation": "Nelson v. Gundlock", "decision_date": "1983-12-08", "docket_number": "No. 4\u201483\u20140149", "first_page": "117", "last_page": "123", "citations": [ { "type": "official", "cite": "120 Ill. App. 3d 117" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "129 N.E. 152", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "295 Ill. 301", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5065065 ], "opinion_index": 0, "case_paths": [ "/ill/295/0301-01" ] }, { "cite": "24 N.W. (2d) 476", "category": "reporters:state_regional", "reporter": "N.W.2d", "opinion_index": 0 }, { "cite": "238 Iowa 34", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8642261 ], "opinion_index": 0, "case_paths": [ "/iowa/238/0034-01" ] }, { "cite": "174 Ill. 618", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5538969 ], "opinion_index": 0, "case_paths": [ "/ill/174/0618-01" ] }, { "cite": "39 Am. Dec. 688", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": 0 }, { "cite": "178 Ill. App. 347", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 8499857 ], "opinion_index": 0, "case_paths": [ "/ill-app/178/0347-01" ] }, { "cite": "90 N.E.2d 645", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "650" } ], "opinion_index": 0 }, { "cite": "339 Ill. App. 551", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5010477 ], "weight": 2, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/ill-app/339/0551-01" ] }, { "cite": "411 N.E.2d 217", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. 2d 548", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5481086 ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0548-01" ] }, { "cite": "145 N.E.2d 596", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "598" } ], "opinion_index": 0 }, { "cite": "12 Ill. 2d 133", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2780051 ], "weight": 2, "pin_cites": [ { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/12/0133-01" ] }, { "cite": "428 N.E.2d 739", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 760", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3087661 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0760-01" ] }, { "cite": "244 S.W. 483", "category": "reporters:state_regional", "reporter": "S.W.", "weight": 2, "pin_cites": [ { "page": "486-87" } ], "opinion_index": 0 }, { "cite": "147 Tenn. 1", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8534027 ], "weight": 2, "pin_cites": [ { "page": "11-13" } ], "opinion_index": 0, "case_paths": [ "/tenn/147/0001-01" ] }, { "cite": "162 N.E.2d 6", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill. 2d 451", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5333145 ], "opinion_index": 0, "case_paths": [ "/ill-2d/17/0451-01" ] }, { "cite": "78 N.E. 42", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1959, "opinion_index": 0 }, { "cite": "222 Ill. 95", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3339622 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/ill/222/0095-01" ] } ], "analysis": { "cardinality": 683, "char_count": 12156, "ocr_confidence": 0.766, "pagerank": { "raw": 1.418267765095063e-07, "percentile": 0.6484613581718471 }, "sha256": "73aa0993dae3cb7b217dcda067bf6e6362e15f2728274aae9cb6f13e58df3a91", "simhash": "1:35da4058c50ab59c", "word_count": 2010 }, "last_updated": "2023-07-14T17:15:36.278372+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "LYLE NELSON, Trustee under the Last Will and Testament of A. V. Nelson, Deceased, Plaintiff-Appellant, v. ROBERT E. GUNDLOCK et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE TRAPP\ndelivered the opinion of the court:\nPlaintiff Lyle Nelson brings this appeal from orders of the circuit court of Livingston County granting summary judgment for the defendants, Robert and Gladys Gundlock and Agnes Baker. Two controlling issues are presented for our review: (1) whether a question of fact exists as to defendants\u2019 acquisition of a prescriptive right to flood plaintiff\u2019s land; and (2) whether a servient landowner has a common law duty to remove natural accumulations of debris in a watercourse. We affirm in part, reverse in part, and remand for further proceedings.\nPlaintiff is the owner of farm land lying to the east of defendants\u2019 land and described as the northwest quarter of section 21, township 29 north, range 5 east. West of plaintiff\u2019s land and servient thereto is defendants\u2019 land described as the northeast quarter of section 20, in that township and range. Two watercourses form the basis for the present dispute: Baker\u2019s Run, a perennial watercourse in the northern portions of the parties\u2019 land which flows in a general southwest direction, and a drainage swale in the southern part of the parties\u2019 land which travels from plaintiff\u2019s land to the defendants\u2019 land through a culvert under a township road.\nCount I of plaintiff\u2019s complaint concerns the second watercourse and alleges that defendants have constructed, within the last 20 years, a berm of earth or obstruction impeding the natural flow of water through the culvert, resulting in a flooding of plaintiff\u2019s land. Counts II and III allege that defendants wrongfully allowed \u201ctrees, shrubs, grass, weeds, brush and other debris\u201d to accumulate in the creek bed of Baker\u2019s Run creek, causing water from Baker\u2019s Run to accumulate on plaintiff\u2019s property. In answer to count I, defendants raised as an affirmative defense that they had acquired a prescriptive right to flood plaintiff\u2019s land, claiming that the berm referred to had existed for well over 20 years adversely to plaintiff\u2019s rights. In response to counts II and III, defendants asserted, by way of affirmative defense, that the obstructions were only natural obstructions and denied any obligation to clean Baker\u2019s creek of such. In separate orders, the trial court granted summary judgment for the defendants on all counts of plaintiff\u2019s complaint.\nTo establish a prescriptive right to flood the lands of another, there must be a flooding for a period of 20 years which is both adverse and uninterrupted and with the knowledge and acquiescence of the landowner. (Wills v. Babb (1906), 222 Ill. 95, 78 N.E. 42; Montgomery v. Downey (1959), 17 Ill. 2d 451, 162 N.E.2d 6.) The record consisting of the pleadings, depositions, and affidavits, discloses that a material question of fact remains to be decided before these elements are established. There seems to be no question of fact that the obstruction or berm has been adjacent to the culvert for well over 20 years, but it remains to be decided whether this obstruction has caused any invasion of plaintiff\u2019s rights for 20 years. The only affidavit filed in opposition to defendant\u2019s motion for summary judgment which addresses this issue is that of plaintiff\u2019s tenant, Russow, who states that \u201cprior to the year 1977, the drainage water flowed through the culvert slowly, but did not back up and flood plaintiff\u2019s land.\u201d\nPart of the problem with this issue stems from defendants\u2019 erroneous belief that an easement need not invade another\u2019s rights to commence the period of limitations. Defendants assert in their brief that the mere maintenance of the obstruction for 20 years, regardless of whether plaintiff\u2019s land is flooded, is controlling in deciding whether a prescriptive right to flood is created. We disagree. Clearly, Wills and Montgomery indicate that an invasion of another\u2019s rights must occur before the period of limitations commences to run. An argument similar to that made by the defendants was made in the case of Davis v. Louisville & Nashville R.R. Co. (1922), 147 Tenn. 1, 244 S.W. 483. In Davis, a dominant landowner brought suit against a railroad for flooding damages to his crops for the years 1916 and 1917. The evidence indicated that the railroad had constructed a bridge with a culvert and embankment in the late 1800\u2019s over a watercourse leading to the Cumberland River, but it was not until approximately 1901 that the culvert became obstructed and flooded plaintiff\u2019s land. The railroad argued that it had a prescriptive right to flood plaintiff\u2019s land because the embankment and culvert had existed for more than 20 years, much as defendants argue here that their berm had been in existence for more than 20 years. The court\u2019s response is pertinent to our inquiry here:\n\u201cThe mere construction of the embankment did not constitute an entry upon the plaintiff\u2019s property; it was of itself no trespass on or invasion of his rights; it was but use of his own property which became an invasion of the plaintiff\u2019s rights upon the maxim \u2018sic utere tuo ut alienum laedas\u2019; it was but the maintenance of a private nuisance which of course afforded no right of action to plaintiff until actual injury resulted therefrom.\n***\nWe conclude, therefore, that we cannot begin to count the prescriptive period from the date of the construction of the embankment, but that it must be counted from the date when experience showed the culvert to be insufficient. *** Before it can rely upon a presumption of a grant, it must be made to appear that at some period more than 20 years before plaintiff\u2019s cause of action arose its embankment and culvert actually caused plaintiff\u2019s land to overflow, and that this condition continued throughout the period.\u201d 147 Tenn.. 1, 11-13, 244 S.W. 483, 486-87.\nSummary judgment should be granted only when the pleadings, depositions, and admissions, together with any affidavits, show that there is no genuine issue as to a material fact and that the movant is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2 \u2014 1005(c); McBride v. Commercial Bank (1981), 101 Ill. App. 3d 760, 428 N.E.2d 739.) Since the affidavits, pleadings and depositions on file show that there is a material question of fact as to whether plaintiff\u2019s land has been adversely and continuously flooded for a period of 20 years, we hold that the trial court erred in granting defendants\u2019 summary judgment on count I of plaintiff\u2019s complaint.\nCounts II and III charge that defendants wrongfully allowed Baker\u2019s Run to become obstructed with natural debris resulting in an overflow of water onto plaintiff\u2019s land. Defendants denied that they had \u201cwrongfully obstructed\u201d Baker\u2019s Run and set up as an affirmative defense that any obstructions were only obstructions occurring in the course of nature and denied any duty to remove such. Defendant Robert Gundlock\u2019s affidavit states that neither he nor any other person took any steps to obstruct the flow of water in Baker\u2019s Run creek. Plaintiff suggested in the trial court and asserts here that servient landowners, such as defendants, have a duty to remove natural obstructions from a perennial watercourse. We disagree.\nIn Geis v. Rohrer (1957), 12 Ill. 2d 133, 145 N.E.2d 596, the owners of a dominant estate sought a mandatory injunction to compel ser-vient landowners to excavate a natural watercourse which plaintiffs contended had been filled in as a result of defendants\u2019 actions. There, the evidence indicated that one of the defendants had plowed along the waterway throwing dirt in it and had placed logs and other debris in and along the ditch. On appeal to the supreme court, the court commented that \u201c[o]ur remaining inquiry, then, is to determine whether there is a reasonable basis for the chancellor\u2019s finding that the defendants caused the obstruction *** and hence are subject to a duty to remedy the situation.\u201d (12 Ill. 2d 133, 136, 145 N.E.2d 596, 598.) We read Geis as well as Dial v. City of O\u2019Fallon (1980), 81 Ill. 2d 548, 411 N.E.2d 217, to indicate that either a negligent or intentional obstruction of a waterway so as to invade another\u2019s interest in land will result in liability. In neither case, nor in any other case which we have found involving private landowners, has it been held that a servient landowner is absolutely liable to clean a watercourse. In fact, the contrary has been held.\nIn Savoie v. Town of Bourbonnais (1950), 339 Ill. App. 551, 90 N.E.2d 645, a dominant landowner brought suit against a town highway commissioner, a county, and adjoining landowners seeking a mandatory injunction to compel them to repair and maintain a drainage ditch which overflowed on plaintiff\u2019s land as a result of its being filled with debris. In upholding the dismissal of the complaint, the appellate court stated:\n\u201cThese cases do not hold that defendants may be compelled at their own expense to perpetually secure plaintiff\u2019s property rights from the adverse forces of nature. ***\nThe law, on the contrary, recognizes that it is the duty of the owner of an easement to keep it in repair (Murtha v. O\u2019Heron, 178 Ill. App. 347), and no obligation is generally imposed upon those whose lands are thus placed in servitude to make repairs. (Prescott v. Williams, 5 Mtc. (Mass.) 429, 39 Am. Dec. 688; 67 C.J. 908.) The proper remedy ordinarily is that the owner of the easement has the right to go on the servient tenement to keep the drain in repair (Wessles v. Colebank, 174 Ill. 618; Nixon v. Welch, 238 Iowa 34, 24 N.W. (2d) 476). Such an interpretation is consistent with our fundamental concepts respecting property rights whereby one owning property is expected to protect those rights himself, and the only duty of others is not to actively invade them.\u201d (339 Ill. App. 551, 559, 90 N.E.2d 645, 650.)\nSee also Advising Farmers sec. 24.16, at 24 \u2014 13 (Ill. Inst. Cont. Leg. Educ. 1983).\nWe do note that in Bay Bottoms Drainage District v. Cache River Drainage District (1920), 295 Ill. 301, 129 N.E. 152, the supreme court stated that drainage districts have a duty to keep district drains free from obstructions. This case is clearly inapposite, however, inasmuch as it was concerned with statutorially created drainage districts which have a statutory duty to keep their drains in operation and repair. (Ill. Rev. Stat. 1981, ch. 42, par. 4 \u2014 15.) With respect to private landowners, the drainage code only imposes a duty not to intentionally or wilfully interfere with a ditch or natural drain. Ill. Rev. Stat. 1981, ch. 42, par. 2 \u2014 12.\nThe complaint, affidavits and other matters on file in support of the defendants\u2019 motion for summary judgment show clearly that the obstructions which existed were natural and not the responsibility of the defendants. (There is some suggestion in an affidavit of Robert Russell that a concrete ford obstructs Baker\u2019s Run creek, but the uncontradicted affidavit of defendants\u2019 surveying expert Krause indicates that the elevation of the concrete ford is much lower than the creek as it leaves plaintiff\u2019s land.) Because there is no question of fact that the obstructions which existed occurred in a state of nature, and because we can find no support for. plaintiff\u2019s suggestion that a servient landowner has a commonlaw duty to remove natural accumulations in a watercourse, we affirm the order of the trial court granting summary judgment for the defendants on counts II and III.\nFor the foregoing reasons, the order of the circuit court of Livingston County granting summary judgment for defendants on counts II and III is affirmed. The order granting summary judgment for the defendants on count I is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.\nAffirmed in part, reversed in part, and remanded for further proceedings.\nMILLS, P.J., and MILLER, J., concur.", "type": "majority", "author": "JUSTICE TRAPP" } ], "attorneys": [ "Walter L. Stodd, of Pontiac, for appellant.", "Law Offices of Sidney E. Smith, of Pontiac (James A. Cas son, of counsel), for appellees." ], "corrections": "", "head_matter": "LYLE NELSON, Trustee under the Last Will and Testament of A. V. Nelson, Deceased, Plaintiff-Appellant, v. ROBERT E. GUNDLOCK et al., Defendants-Appellees.\nFourth District\nNo. 4\u201483\u20140149\nOpinion filed December 8, 1983.\nWalter L. Stodd, of Pontiac, for appellant.\nLaw Offices of Sidney E. Smith, of Pontiac (James A. Cas son, of counsel), for appellees." }, "file_name": "0117-01", "first_page_order": 139, "last_page_order": 145 }